Xian Tong Dong v. Holder , 696 F.3d 121 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 12-1091
XIAN TONG DONG,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Thompson, Selya and Lipez,
Circuit Judges.
Nathan Weill and Law Office of Nathan Weill on brief for
petitioner.
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, Terri J. Scadron, Assistant Director, and Shahrzad
Baghai, Trial Attorney, Office of Immigration Litigation, Civil
Division, on brief for respondent.
October 3, 2012
SELYA, Circuit Judge. This case requires us to decide,
for the first time, whether 8 U.S.C. § 1101(a)(42)(B), a statute
enacted to pave the way for asylum for victims of China's coercive
population control policies, extends automatically to a spouse of
a person forced to undergo an abortion. We join several of our
sister circuits in holding that it does not.
The issue arises in connection with the asylum
application of Xian Tong Dong, a Chinese national, who seeks to
remain in the United States because of, among other things, his
wife's forced abortion. Before us, he solicits judicial review of
a final order of the Board of Immigration Appeals (BIA) denying him
asylum and decreeing his removal to his homeland. After careful
consideration, we reject his petition.
The record reflects that the petitioner entered the
United States without inspection in March of 2006. The Chinese
government previously had forced his wife to undergo an abortion,
and he hoped to send for her and their son after gaining permission
to remain.
The petitioner applied for asylum on October 10, 2006.
Federal authorities responded by instituting removal proceedings
and referring his case to the immigration court. The case was
heard on the merits by an immigration judge (IJ) on December 2,
2009. In the interim, the petitioner became involved with the
Chinese Evangelical Church in Boston, Massachusetts. He was
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baptized there in April of 2009. He expanded the grounds on which
he sought asylum to include a fear of religious persecution.
In the immigration court, the petitioner testified that,
consonant with the Chinese government's repressive population
control policies, his wife was fitted with an intrauterine device
(IUD) after the birth of their first child.1 Flouting government
policy, she had the IUD removed by a privately retained physician.
The couple thereafter conceived a second child. When Chinese
authorities became aware of the pregnancy, they subjected the
petitioner's wife to a forced abortion in 2005. This event,
according to the petitioner, prompted him to leave China and come
to the United States.
The Attorney General has discretion to grant asylum to
any alien who establishes that he is a refugee. 8 U.S.C.
§ 1158(b)(1). At the end of the petitioner's hearing, he argued
that he was entitled to per se refugee status under 8 U.S.C.
§ 1101(a)(42)(B) as "a person who has been forced to abort a
pregnancy." The IJ rejected this argument, holding that the spouse
of a person who has been physically subjected to a forced abortion
is not entitled to refugee status per se.
Alternatively, the petitioner argued that he was entitled
to asylum on a different ground; he posited that repatriation would
1
We note that the IJ found the petitioner's testimony to be
generally credible.
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subject him to persecution because his new found Evangelical
Christian beliefs would compel him to attend an unsanctioned church
(which, in turn, would leave him open to arrest). The IJ rejected
this argument as well. She concluded that the evidence in the
record indicated that the Chinese government's handling of
unsanctioned churches varied widely in different regions of the
country, and that the petitioner had not introduced evidence
sufficient to show that he was likely to be targeted by the
government. Thus, the petitioner had failed to carry his burden of
showing a well-founded fear of persecution on account of his
religion. See Jiang v. Gonzales, 474 F.3d 25, 30 (1st Cir. 2007).
After the IJ denied the petitioner's application for
asylum and ordered his removal, the petitioner appealed. The BIA
affirmed. This timely petition for judicial review followed.
In the ordinary course, judicial review in immigration
matters focuses on the final order of the BIA. See Amouri v.
Holder, 572 F.3d 29, 33 (1st Cir. 2009). But where, as here, the
BIA accepts the IJ's findings and reasoning yet adds its own gloss,
we review the two decisions as a unit. See Gilca v. Holder, 680
F.3d 109, 114 (1st Cir. 2012).
The main event in this case is the petitioner's claim for
per se refugee status under 8 U.S.C. § 1101(a)(42)(B). Because
this claim raises a question of statutory interpretation, it
engenders de novo review, "albeit with some deference to the
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[agency's] reasonable interpretation of the statutes and
regulations that fall within its purview." Carvalho-Frois v.
Holder, 667 F.3d 69, 72 (1st Cir. 2012).
Section 1101(a)(42)(B) states in pertinent part that the
term "refugee" shall include "a person who has been forced to abort
a pregnancy or to undergo involuntary sterilization." The
petitioner argues that a man whose wife is forced to abort a child
loses the child in the same way as the mother and, thus, has been
forced to abort a pregnancy. Based on this reasoning, the
petitioner asserts that the plain language of the statute
encompasses a person — like himself — whose spouse experienced a
forced abortion at the hands of the government.
The petitioner's assertion has a certain superficial
appeal. But in rebuffing this assertion, both the BIA and the IJ
relied on the Attorney General's contrary interpretation of the
statute. See Matter of J-S, 24 I&N Dec. 520, 536 (BIA 2008)
(opinion of Attorney General). We turn, therefore, to this
quandary.
The relevant statute speaks only of "a person who has
been forced to abort a pregnancy," 8 U.S.C. § 1101(a)(42)(B).
Under a natural reading, the focus is on persons targeted for a
procedure, not upon the results of the procedure. Put another way,
the statutory language appears unambiguously to refer only to the
person who actually undergoes the procedure, not to the spouse of
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that person. Two courts of appeals have unreservedly embraced this
plain-language construction. See Lin-Zheng v. Att'y Gen., 557 F.3d
147, 157 (3d Cir. 2009); Shi Liang Lin v. U.S. Dep't of Justice,
494 F.3d 296, 309 (2d Cir. 2007). Two others have agreed with the
plain-language interpretation, but in an abundance of caution have
gone on to discuss the Attorney General's interpretation. See Yi
Ni v. Holder, 613 F.3d 415, 425-26 (4th Cir. 2010); Yu v. U.S.
Att'y Gen., 568 F.3d 1328, 1332-33 (11th Cir. 2009).
We too hold that the plain language of the statute
defeats the petitioner's claim. But even if we assume — favorably
to the petitioner — that the statutory text, read charitably, might
admit of some conceivable ambiguity, the Attorney General's
interpretation would demand the same result.
To begin, 8 C.F.R. § 1003.1(h)(1)(i) authorizes the
Attorney General to direct the BIA to refer specific cases to him
for review and determination. Given this unfettered grant of
authority to usurp the BIA — an authority that the Attorney General
exercised in Matter of J-S — the Attorney General's interpretation
of the statute is entitled to Chevron deference. See INS v.
Aguirre-Aguirre, 526 U.S. 415, 424-25 (1999); Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984);
see also Naeem v. Gonzales, 469 F.3d 33, 36 (1st Cir. 2006)
(explaining that judicial review of the Attorney General's formal
interpretation of an immigration statute is entitled to Chevron
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deference). This means, in effect, that if the statute in question
is ambiguous, an inquiring court must defer to the Attorney
General's reasonable construction of it. See Chevron, 467 U.S. at
843; Naeem, 469 F.3d at 36.
In Matter of J-S, the Attorney General, relying heavily
on a textual analysis of section 1101(a)(42)(B), rejected an
expansive interpretation of the statute that would have dictated
spousal eligibility. Matter of J-S, 24 I&N Dec. at 528. The
Attorney General's interpretation hewed to the letter of the
statute. To cinch matters, he fortified this plain-language
construction with convincing comparisons to other provisions of the
Immigration and Nationality Act. One such provision limns
particular circumstances under which a spouse may be eligible for
asylum. Id. at 529-30 (citing 8 U.S.C. § 1158(b)(3)). Another
requires every applicant for asylum establish "his or her own
eligibility." Id. at 530 (emphasis in original) (citing 8 U.S.C.
§ 1158(b)(1)(B)).
Four of our sister circuits (including two that held the
plain language of the statute to be controlling) have addressed the
Chevron question that faces us today. They have, without
exception, concluded that the Attorney General's interpretation of
section 1101(a)(42)(B) is both reasonable and worthy of deference.
See Yi Ni, 613 F.3d at 425; Nai Yuan Jiang v. Holder, 611 F.3d
1086, 1097 (9th Cir. 2010); Shou Wei Jin v. Holder, 572 F.3d 392,
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397 (7th Cir. 2009); Yu, 568 F.3d at 1332-33. No court has either
rejected the Attorney General's interpretation of the statute or
thereafter given its imprimatur to the strained reading that the
petitioner espouses.
To be sure, the Attorney General took great care to make
certain that his interpretation of section 1101(a)(42)(B) "does not
explicitly exclude spouses from its purview." Matter of J-S, 24
I&N Dec. at 530. But a spouse must show some special circumstance
— that is, something more than his relationship to the recipient of
a forced abortion — in order to avail himself of this caveat.
Here, however, the petitioner has made no such showing. Indeed,
the agency in this case considered (and found inapplicable) other
provisions of section 1101(a)(42)(B) that might have allowed the
petitioner to qualify as a per se refugee. Along these lines, the
petitioner could have adduced evidence to show that he had a well-
founded fear of, say, forced sterilization or persecution for
resisting a coercive population control program. See 8 U.S.C.
§ 1101(a)(42)(B). But the petitioner did not offer any such
evidence, nor has he made any such argument.
That ends this aspect of the matter. We agree with the
other courts of appeals that have mulled the question: given the
language of the relevant statute and the Attorney General's
reasonable interpretation of it, we hold that the agency did not
err in refusing to grant the petitioner per se refugee status on
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the basis that the Chinese government had compelled his wife to
undergo a forced abortion.
We proceed next to the agency's determination that the
petitioner did not carry his burden of proving a well-founded fear
of religious persecution sufficient to warrant asylum. We review
such determinations under the familiar substantial evidence rule.
See Ruiz v. Mukasey, 526 F.3d 31, 35 (1st Cir. 2008). "This
standard requires us to accept all findings of fact so long as they
are supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Gilca, 680 F.3d at 114(internal quotation marks omitted); see 8 U.S.C. § 1252(b)(4)(B).
"This is not a petitioner-friendly standard of review; a reversal
is appropriate only when the record evidence points unerringly to
a conclusion different from that reached by the BIA." Ruiz, 526
F.3d at 35 (internal quotation marks omitted); see INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992).
"An asylum-seeker bears the burden of proving that he is
a refugee within the meaning of the immigration laws." Jiang, 474
F.3d at 30. Pursuant to 8 U.S.C. § 1101(a)(42)(A), an alien may
achieve refugee status based on a well-founded fear of persecution
if "there is a pattern or practice in his or her country of
nationality . . . of persecution of a group of persons similarly
situated to the applicant on account of . . . religion." 8 C.F.R.
§ 1208.13(b)(2)(iii)(A).
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In this case, the petitioner's evidence suggests that
there are important differences between sanctioned and unsanctioned
Protestant churches in China. For example, the Chinese government
requires sanctioned churches to exalt the Communist Party over God,
to instruct members to uphold Marxism, Leninism and Mao Zedong
thought, and to withhold baptism for those under the age of 18.2
The petitioner, who became an Evangelical Christian after he fled
from China, maintains in his brief that he regarded these
restrictions as inconsistent with the principles of his faith — a
circumstance that, upon repatriation, would impel him to join an
unsanctioned church.
Here, however, the petitioner's evidence of potential
persecution based on this religious choice is neither specific to
his own circumstances nor localized to the region in China from
which he hails. Such a specific link is normally a necessary
element of a claim based on a fear of future persecution. See,
e.g., Lopez Perez v. Holder, 587 F.3d 456, 461-62 (1st Cir. 2009);
Seng v. Holder, 584 F.3d 13, 19-20 (1st Cir. 2009); Raza v.
Gonzales, 484 F.3d 125, 129 (1st Cir. 2007).
At any rate, the petitioner's attempt to establish a
pattern and practice of persecution of Evangelical Christians is
unpersuasive. His evidence in this respect consists primarily of
2
These directives apparently are anathema to Evangelical
Christian churches, and those churches apparently operate in China
only as unsanctioned churches.
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information about some generalized trends in China, gleaned from a
variety of reports published by the State Department and the United
States Commission on International Freedom. One of these reports
estimates that between fifty and seventy million Chinese Christians
practice in unsanctioned churches, even though varying degrees of
government-instigated or government-tolerated harassment exist.
Another report mentions sporadic incidents of members of
unsanctioned churches being incarcerated for "re-education through
labor" for engaging in illegal religious activities.
Although these carefully selected evidentiary excerpts
hint at a multitude of problems, they are not enough to compel a
finding that the petitioner harbors a well-founded fear of
religious persecution. The reports to which the petitioner alludes
tell us very little about the prevalence or severity of harassment;
they tell us even less about the likelihood that the petitioner, if
repatriated, would be exposed to harassment that rises to the level
of persecution. Cf. Bocova v. Gonzales, 412 F.3d 257, 263 (1st
Cir. 2005) (holding that mistreatment rises to the level of
persecution when it is "systematic rather than reflective of a
series of isolated incidents" and concluding that two instances of
police brutality and one threat did not amount to persecution under
this standard). We have said before, and today reaffirm, that
overview reports, such as the ones upon which the petitioner
relies, "do very little to substantiate" claims of persecution as
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they do not ordinarily "either directly or by reasonable
implication, connect these foibles with the petitioner's particular
situation." Lopez Perez, 587 F.3d at 461. "Without some specific,
direct, and credible evidence relative to [the petitioner's] own
situation," the nexus between the petitioner and the reports'
generalized depictions are too speculative to compel a finding of
persecution. Seng, 584 F.3d at 19-20.
In all events, the 2008 Department of State Human Rights
Report makes manifest that "[l]ocal authorities' handling of
unregistered Protestant groups varie[s] in different regions of the
country." Relatedly, the report notes that "freedom to participate
in religious activities [has] continued to increase in many areas"
of China. Thus, the report explains, persecution on this ground is
subsiding. The report goes on to explain that "in some regions
unregistered groups or house churches with hundreds of members
me[e]t openly, with full knowledge of [the] authorities." The
documentary evidence relied on by the petitioner concedes the
existence of these trends.
To sum up, the evidence, taken as a whole, comprises a
mixed bag. The BIA and the IJ were, therefore, free to attach
substantial weight to those portions of the evidence that undercut
the petitioner's claim. See Negeya v. Gonzales, 417 F.3d 78, 84
(1st Cir. 2005).
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The short of it is that the evidence in the record did
not compel the agency to find that the petitioner had carried his
burden of proving an objectively reasonable and well-founded fear
of religious persecution. After all, the petitioner offered no
"specific, direct, and credible evidence relative to [his] own
situation," Seng, 584 F.3d at 19, as required by our precedents.
Given the chiaroscuro nature of the record, the agency's
determination that the petitioner failed to carry his burden of
establishing that he, in particular, would likely be subject to
religious persecution should he be repatriated, is supported by
substantial evidence. See, e.g., Chen v. Holder, 675 F.3d 100,
107-08 (1st Cir. 2012).
We add a coda. The petitioner's claim of religious
persecution has a peculiar twist: he did not convert to Evangelical
Christianity until after his arrival in the United States. Other
courts have considered the implications of this cart-before-the-
horse scenario and have indicated that it carries with it a need
for the alien to prove certain additional facts. See, e.g.,
Hongsheng Leng v. Mukasey, 528 F.3d 135, 138 (2d Cir. 2008) ("[T]o
establish eligibility for relief based exclusively on activities
undertaken after his arrival in the United States, an alien must
make some showing that authorities in his country of nationality
are (1) aware of his activities or (2) likely to become aware of
his activities."); Sui Jing Zhang v. Att'y Gen., ___ Fed. App'x
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___, ___ (3d Cir. 2012) [No. 12-1510, slip op. at 3] (similar). We
take no view on this issue because, in all events, the petitioner's
claim of religious persecution fails on other grounds.
We need go no further.3 For the reasons elucidated
above, we deny the petition for judicial review.
So Ordered.
3
The petitioner's argument that the BIA gave insufficient
consideration to the distinction between sanctioned and
unsanctioned churches does not alter this conclusion. This
distinction is irrelevant to the question of whether the petitioner
forged a nexus between whatever generalized problems existed and
his own situation.
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